Citation Nr: 0620075
Decision Date: 07/11/06 Archive Date: 07/21/06
DOCKET NO. 04-13 259 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Des Moines,
Iowa
THE ISSUES
1. Entitlement to service connection for a low back
disability.
2. Entitlement to service connection for alcoholism.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
K. Conner, Counsel
INTRODUCTION
The veteran served on active duty from June 1981 to October
1984.
This matter comes to the Board of Veterans' Appeals (Board)
from a February 2003 rating decision of the special
processing unit known at the Tiger Team at the Department of
Veterans Affairs (VA) Regional Office (RO) in Cleveland,
Ohio.
As set forth on the cover page of this decision, the
veteran's claim has been returned to the jurisdiction of the
RO in Des Moines, Iowa. In May 2004, the veteran testified
at a hearing at the Des Moines RO in support of his appeal.
FINDINGS OF FACT
1. The record contains no indication that the veteran's
current low back disability is related to his active service
or any incident therein.
2. The veteran's alcoholism is the result of his own willful
misconduct or alcohol abuse.
CONCLUSIONS OF LAW
1. A low back disability was not incurred in active service.
38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303
(2005).
2. Service connection for alcoholism is precluded as a
matter of law. 38 U.S.C.A. §§ 105(a), 1131 (West 2002); 38
C.F.R. §§ 3.1(m), 3.301 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000 (VCAA)
Duty to Notify
Under the VCAA, VA is required to advise a claimant of the
information and evidence not of record that is necessary to
substantiate the claim. See 38 U.S.C.A. § 5103 (West 2002);
38 CFR § 3.159(b)(1) (2005). As part of that notice, VA must
inform the claimant of the information and evidence he is
expected to provide, as well as the information and evidence
VA will seek to obtain on his behalf. In addition, VA must
advise a claimant to provide any additional evidence in his
possession that pertains to the claim. See 38 U.S.C.A. §
5103 (West 2002); 38 CFR § 3.159(b)(1) (2005).
The United States Court of Appeals for Veterans Claims
(Court) has provided additional guidance with respect to VA's
VCAA notification obligations. In Pelegrini v. Principi, 18
Vet. App. 112 (2004), the Court held that under the notice
provisions of the VCAA, a claimant must be provided notice of
the evidentiary matters specified in statute and regulation
before an initial unfavorable decision by the RO.
In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the
Court held that the notice requirements of section 5103(a)
apply generally to the following five elements of a service
connection claim: (1) veteran status; (2) existence of a
disability; (3) a connection between the veteran's service
and the disability; (4) degree of disability; and (5)
effective date.
In this case, in an April 2002 letter issued prior to the
initial rating decision on his claims, the RO notified the
veteran of the information and evidence needed to
substantiate and complete a claim of service connection, and
of what part of that evidence he was to provide and what part
VA would attempt to obtain for him. The letter also advised
the veteran to identify any additional information that he
felt would support his claim. 38 U.S.C.A. § 5103(a) (West
2002); 38 C.F.R. § 3.159(b)(1) (2005); Quartuccio v.
Principi, 16 Vet. App. 183, 187 (2002). The RO reiterated
this information in a subsequent VCAA letter issued in August
2004. In addition, in an April 2006 letter, the RO issued a
letter which fulfilled the additional requirements delineated
by the Court in Dingess/Hartman.
Duty to Assist
Under the VCAA, VA also has a duty to assist claimants in
obtaining evidence needed to substantiate a claim, unless no
reasonable possibility exists that such assistance would aid
in substantiating the claim. 38 U.S.C.A. § 5103A (West
2002); 38 C.F.R. § 3.159(c) (2005).
In this case, the RO has obtained all available post-service
VA and private clinical records specifically identified by
the veteran. In addition, records associated with the
veteran's unsuccessful application for disability benefits
from the Social Security Administration have been received.
38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2),
(3) (2005).
With respect to the veteran's service medical record, a
review of the record indicates that the veteran's original
claims folder was lost. As a result, his service medical
records are unavailable. The veteran has been informed that
his service records are unavailable. See McCormick v. Gober,
14 Vet. App. 39 (2000). He has also been informed of
alternative evidence to submit. For example, in the April
2002 VCAA letter discussed above, the veteran was advised
that "evidence which shows your injury or disease happened
during service" could consist of "your own written
statement describing what happened." In addition, at his
May 2004 hearing, the Hearing Officer indicated that "I'd
just like to emphasis what we need is the evidence between
'84 and present showing you continuously had a back problem
from service." He indicated that "that's the kind of
evidence that we really need." See Hearing transcript at
page 12; see also Constantino v. West, 12 Vet. App. 517
(1999) (emphasizing the duty to suggest the submission of
evidence that the claimant may have overlooked and which
would be supportive of the claim.).
Based on the substantial efforts made by the RO to obtain
additional service medical records, as well as the
unambiguous responses from the National Personnel Records
Center and the Records Management Center, the Board finds
that it is reasonably certain that further efforts to obtain
additional service medical records would be futile. 38
U.S.C.A. § 5103A(b)(3) (West 2002). Thus, while the Board
sincerely regrets that the veteran's service records are
unavailable, it finds that VA has no further duty to him with
respect to obtaining them.
In that regard, the Board has considered the May 2006
contentions of the veteran's representative to the effect
that VA has an obligation to make additional efforts to
obtain the veteran's service medical records. Specifically,
he notes that if the veteran had applied to the Naval
Discharge Review Board or the Board for Correction of Naval
Records for review of the characterization of his discharge,
his service medical records would have been forwarded to
those agencies. Thus, the veteran's representative argues
that VA has a duty to contact those agencies and request the
veteran's service medical records.
The Board notes, however, the veteran has given absolutely no
indication that he has, in fact, applied to either body for a
review of the characterization of his discharge. The Court
has held that "VA has no duty to seek to obtain that which
does not exist." Counts v. Black, 6 Vet. App. 473, 477
(1994); see also Gobber v. Derwinski, 2 Vet. App. 470, 477
(1992) (noting that VA's "duty to assist is not a license
for a 'fishing expedition' to determine if there might be
some unspecified information which could possibly support the
claim."). Absent any indication that the Naval Discharge
Review Board or the Board for Correction of Naval Records has
copies of the veteran's service medical records, the Board
finds that there is no duty to contact them.
In summary, the Board notes that the RO has made substantial
efforts to obtain additional service medical records.
Without exception, these efforts have proven futile. The
Board is unable to conceive of an avenue of development which
has not yet been explored. For these reasons, the Board
finds that VA has no further duty to seek to obtain
additional service medical records. In any event, as
explained in more detail below, the outcome of the claim of
service connection for alcoholism does not hinge on what
happened during service. Rather, service connection for
alcoholism is precluded as a matter of law. 38 U.S.C.A. §§
105(a), 1131, 5107 (West 2002); 38 C.F.R. §§ 3.1(m), 3.301
(2005).
Under the VCAA, the assistance provided by VA includes
providing a medical examination or obtaining a medical
opinion if such an examination or opinion is necessary to
make a decision on the claim. See 38 U.S.C.A. § 5103A (West
2002); 38 C.F.R. § 3.159 (2005).
An examination or opinion is "necessary" if the evidence of
record: (A) contains competent evidence that the claimant
has a current disability, or persistent or recurrent symptoms
of disability; and (B) establishes that the veteran suffered
an event, injury or disease in service; (C) indicates that
the claimed disability or symptoms may be associated with the
established event, injury, or disease in service or with
another service-connected disability, but (D) does not
contain sufficient medical evidence for the Secretary to make
a decision on the claim. See 38 C.F.R. § 3.159(c)(4) (2005).
Despite the contentions of the veteran's representative,
given the facts of this case, the Board finds that an
examination or medical opinion is not necessary. As set
forth in more detail below, the record is negative for
evidence of an in-service back injury or any indication that
the veteran's current low back disorder is associated with an
in-service injury. Lacking such evidence, the Board finds
that a VA medical examination or opinion is not necessary.
Similarly, because service connection for alcoholism is
precluded as a matter of law, an examination would serve no
useful purpose.
For the reasons set forth above, and given the facts of this
case, the Board finds that no further notification or
development action is necessary. 38 U.S.C.A. § 5103A(d)
(West 2002); 38 C.F.R. § 3.159(c)(4) (2005).
Background
As set forth above, the veteran's service medical records are
unavailable.
The post-service medical evidence shows that the veteran was
hospitalized at a VA Medical Center from March to May 1989
for treatment of alcohol dependence. Records compiled in
connection with that period of hospitalization show that the
veteran reported having a problem with alcohol since the age
of 17. He indicated that his only prior treatment for
alcohol abuse had been during service, and that he had been
discharged from the Navy secondary to alcohol abuse. On
examination at the time of admission, the veteran had no
pertinent physical complaints, although scoliosis of the
thoracic and lumbar segments of the spine was incidentally
observed. The hospitalization records are negative for
complaints or findings of an in-service low back injury. The
diagnosis on discharge was alcohol dependence.
Subsequent VA clinical records show that in April 1992, the
veteran sought treatment for back pain. He reported that
three days prior, he had fallen down a 10-12 foot gravel
embankment, sustaining loss of consciousness. He indicated
that he was initially examined at a private facility, where
X-rays showed a herniated disc. The veteran denied a history
of previous trauma or low back pain. The assessments
included multiple abrasions and possible compression fracture
to T8 and muscle spasms, secondary to recent trauma.
Records from a private chiropractor show that in November
1992, the veteran sought treatment for left shoulder pain.
In reporting his previous injuries, the veteran indicated
that in the Spring of 1992, he sustained a "crushed disc"
in his low back after he fell off the hood of a car. The
veteran also reported that while had been in the Navy, a
slight curve of his back was noted. He did not report a
history of injury during service. In April 1995, the veteran
again sought treatment after he twisted his back while
getting out of a chair. He reported mid back pain.
Private clinical records show that in September 1997, the
veteran fell from a truck at his place of work. Since that
time, he experienced low back pain radiating to the right
lower extremity. An MRI was performed and revealed a small
L5-S1 disc herniation. He was initially treated with an
epidural steroid injection, which failed to relieve his
symptoms. In December 1997, he underwent a partial
hemilaminotomy and diskectomy at L5-S1.
Later that month, the veteran was again hospitalized after he
overdosed on Valium and pain medication prescribed for his
low back symptoms. His friends reported that the veteran had
been feeling depressed since having to leave his job as a
result of his recent low back injury. When asked about his
prior psychiatric treatment, the veteran reported that he had
received a general discharge from the Navy due to alcohol
abuse. He indicated that he had been hospitalized by VA
years ago for treatment of alcohol and cocaine abuse. The
diagnoses included history of alcohol abuse and accidental
overdose of hydrocodone and Valium.
In pertinent part, VA clinical records, dated from April 2001
to November 2001, show that the veteran sought treatment for
chronic low back pain with numbness in the left lower
extremity. In April 2001, the veteran indicated that his
back pain had been present for the past four years. In that
regard, the veteran reported a history of a lumbar
laminectomy in December 1997, due to a 1997 motor vehicle
accident. He did not report an in-service injury. MRI of
the lumbar spine was performed in April 2001 and showed mild
degenerative changes, but no compression. The veteran was
given a TENS unit in December 2001. Subsequent records show
continued complaints of back pain.
In November 2001, the veteran contacted a VA social worker,
claiming that he was disabled due to a low back injury during
service. He requested financial assistance in paying his
rent. He was advised that no financial benefits were
available from the VAMC and was advised to seek service
connection for his claimed low back disability.
In December 2001, the veteran submitted an application for VA
compensation benefits, seeking service connection for
residuals of a low back injury. He also claimed entitlement
to service connection for alcoholism. Subsequent VA clinical
records dated to March 2005 show continued complaints of low
back pain.
Records from the Social Security Administration show that the
veteran's application for disability benefits was initially
denied in October 2001. He appealed that determination and
his appeal was dismissed in August 2002. Medical records
compiled in connection with his claim include an August 2001
disability determination evaluation at which the veteran
reported that he had injured his back in the Navy in a fall.
He stated that he reinjured his back in 1997, which led to a
lumbar laminectomy in December 1997. The impression was
limitations due to cervical and lumbar pain and limited
motion.
At his May 2004 hearing, the veteran testified that in 1982,
while he was stationed in Antarctica, he slipped on the ice
and fell on his back. He indicated that was examined in sick
bay and advised that there was something wrong with his back
and that treatment would require him to leave Antarctica.
The veteran testified that because he did not want to leave,
he told them, "Let's just hold off on the back." The
veteran indicated that upon his return from Antarctica, he
was visited the dispensary occasionally for back pain and was
given pain medication. The veteran claimed that immediately
after his separation from service in 1984, he began seeing
chiropractors for back pain. He indicated, however, that he
was unable to remember the names of any of these early
treatment providers. With respect to his claim of service
connection for alcoholism, the veteran indicated that he
enlisted in the Navy at the age of 17. He indicated that he
began drinking at that time and had not stopped until his
discharge.
Law and Regulations
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted in the
line of duty or for aggravation of a pre-existing injury or
disease in the line of duty; however, no compensation shall
be paid if the disability is a result of the veteran's own
willful misconduct or abuse of alcohol or drugs. 38 U.S.C.A.
§§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306
(2005).
Where a veteran served ninety days or more during a period of
war and certain chronic diseases, including arthritis, become
manifest to a degree of 10 percent within one year from date
of termination of such service, such disease shall be
presumed to have been incurred in service even though there
is no evidence of such disease during the period of service.
This presumption is rebuttable by affirmative evidence to the
contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§
3.307, 3.309 (2005).
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
"In the line of duty" means an injury or disease incurred
or aggravated during a period of active military, naval, or
air service unless such injury or disease was the result of
the veteran's own willful misconduct, or for claims filed
after October 31, 1990, was the a result of his or her abuse
of alcohol or drugs. 38 C.F.R. § 3.1(m) (2005).
"Willful misconduct" means an act involving conscious
wrongdoing or known prohibited action. It involves
deliberate or intentional wrongdoing with knowledge of, or
wanton and reckless disregard for, its probable consequences.
Mere technical violation of police regulations or ordinances
per se will not constitute willful misconduct. Willful
misconduct will not be determinative unless it is the
proximate cause of injury, disease, or death. 38 C.F.R. §
3.1(n) (2005).
The simple drinking of alcoholic beverage is not itself
willful misconduct; however, if in the drinking of a beverage
to enjoy its intoxicating effects, intoxication results
proximately and immediately in the disability or death, the
disability or death will be considered the result of the
person's willful misconduct. Organic diseases and
disabilities that are a secondary result of the chronic use
of alcohol as a beverage, whether out of compulsion or
otherwise, will not be considered of willful misconduct
origin. 38 C.F.R. § 3.301(c)(2) (2005).
"Alcohol abuse" means the use of alcoholic beverages over
time, or such excessive use at any one time, sufficient to
cause disability to the user. 38 C.F.R. § 3.301(d) (2005);
see also VAOPGCPREC 7-99 (June 9, 1999).
In claims for VA benefits, VA shall consider all information
and lay and medical evidence of record in a case before the
Secretary with respect to benefits under laws administered by
the Secretary. When there is an approximate balance of
positive and negative evidence regarding any issue material
to the determination of a matter, the Secretary shall give
the benefit of the doubt to the claimant. 38 U.S.C.A. §
5107(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet.
App. 49, 55 (1990) (holding that a claimant need only
demonstrate that there is an "approximate balance of
positive and negative evidence" in order to prevail).
Analysis
Low back disability
The veteran claims that his current low back disability had
its inception in service as a result of a 1982 injury he
sustained after he slipped on the ice during his tour of duty
in Antarctica. As noted, his service medical records are
unavailable and the record contains no other medical evidence
of an in-service back injury or disability.
Likewise, the post-service medical evidence is negative for
findings of a low back disability for many years after
service. The Board has considered the veteran's contentions
to the effect that he sustained a low back injury in service
and experienced low back pain on a continuous basis since
that time. He claims that he has received regular
chiropractic care from 1984 to the present. Unfortunately,
however, he failed to submit or specifically identify any
medical records of treatment for complaints of low back
symptoms prior to April 1992, when he sought treatment for
back pain after a fall from an embankment. Significantly, at
that time, he denied a history of previous trauma or low back
pain.
The Board notes that the concept of continuity of
symptomatology focuses on continuity of symptoms, not
treatment. In a merits context, however, the lack of
evidence of treatment may bear upon the credibility of the
evidence of continuity. See Savage v. Gober, 10 Vet. App.
488, 496 (1997). The record in this case discloses a span of
approximately 12 years without any clinical evidence to
support the veteran's current claim of a continuity of low
back symptoms since service. Moreover, the objective
evidence set forth above contradicts his assertions in that
regard, in that the veteran denied a history of prior low
back symptoms or injury in April 1992.
The Board finds that the contemporaneous records are entitled
to more probative weight than the recollections of the
veteran of events which occurred many years previously. The
fact that the contemporaneous records do not provide
subjective or objective evidence that supports the veteran's
recent contention that he experienced continuous low back
symptoms since service is persuasive evidence against the
claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991).
Although the record shows that any in-service low back injury
was not chronic in nature, service connection may nonetheless
be granted for any disease diagnosed after discharge, when
all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d). Thus, if there is a causal connection
between the current condition and service, service connection
may be established. Godfrey v. Derwinski, 2 Vet. App. 354
(1992).
In this case, the only evidence supporting the veteran's
claim of a causal relationship between his current low back
disability and service consists of his own opinion. However,
the Board finds this evidence warrants little probative
weight as there is no indication that the veteran has any
specialized education, training, or experience on which to
base his medical conclusions. Cf. Espiritu v. Derwinski, 2
Vet. App. 492 (1992). Moreover, the Board notes that the
veteran is an interested party in this matter, adding further
doubt to the probative value of his opinion. See Caluza v.
Brown, 7 Vet. App. 498, 510-511 (1995) (holding that
credibility can be impeached generally by a showing of
interest, bias, inconsistent statements, or, to a certain
extent, bad character).
On the other hand, the evidence which weighs against his
claim consists of the negative evidence for many years after
service separation, as well as the medical evidence showing
that the veteran sustained significant post-service low back
injuries in 1992 and 1997. The Board additionally notes
that, other than his own statements, the record contains no
indication of a link between the veteran's current low back
disability and his active service or any incident therein.
Absent evidence of a low back disability in service, for many
years thereafter, or of a link between the current low back
injury and the veteran's active service or any incident
therein, the Board finds that the preponderance of the
evidence is against the claim of service connection for a low
back disability. As the preponderance of the evidence is
against the claim, the benefit-of-the-doubt doctrine is
inapplicable. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v.
Derwinski, 1 Vet. App. 49, 55 (1990).
Alcoholism
The veteran also seeks service connection for alcoholism. He
claims that he began drinking alcohol excessively in service
and developed alcoholism as a result.
As set forth above, the law expressly prohibits service
connection for alcohol or drug abuse based on claims filed on
or after October 31, 1990, and requires that disability
resulting from drug or alcohol abuse be regarded as the
products of willful misconduct. Therefore, the veteran's
claim of service connection for alcoholism, filed in December
2001, must be denied as a matter of law. See Sabonis v.
Brown, 6 Vet. App. at 429 (1991).
ORDER
Entitlement to service connection for a low back disability
is denied.
Entitlement to service connection for alcoholism is denied.
______________________________________________
STEVE L. COHN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs